Thong Ah Fat v Public Prosecutor
Court | Court of Appeal (Singapore) |
Judge | Chao Hick Tin JA |
Judgment Date | 30 November 2011 |
Neutral Citation | [2011] SGCA 65 |
Citation | [2011] SGCA 65 |
Docket Number | Criminal Appeal No 13 of 2010 (Criminal Case No 17 of 2010) |
Hearing Date | 02 March 2011 |
Plaintiff Counsel | Boon Khoon Lim and Chua Siow Lee Dora (Dora Boon & Company) |
Defendant Counsel | Siva Shanmugam and Samuel Chua (Attorney-General's Chambers) |
Subject Matter | CRIMINAL PROCEDURE AND SENTENCING,Appeal,procedure,retrial,High Court,irregularities in proceedings |
Published date | 05 December 2011 |
This is an appeal brought by Thong Ah Fat (“the Appellant”) against the decision of the trial judge (“the Judge”) in
The Judge, in a brief judgment of five paragraphs, explained why he found the Appellant guilty of the charge and upon convicting him, sentenced him to suffer the mandatory death penalty. To facilitate the understanding of our grounds, we think it will be helpful to set out the Judgment in full:That you,
Thong Ah Fat ,on 12 January 2009, at or about 4.55 p.m., at the Woodlands Checkpoint Green Channel Arrival Car Zone 100% Inspection Pit, Singapore, did import into Singapore a controlled drug that is specified in Class “A” of the First Schedule to the Misuse of Drugs Act, Chapter 185, to wit, by driving into Singapore a car bearing Malaysian registration number JKQ 7274 with drugs containing not less than 142.41 grams of Diamorphine, without authorisation under the said Act or the Regulations made thereunder, and you have thereby committed an offence under section 7 and punishable under section 33 of the Misuse of Drugs Act, Chapter 185.
The substantive issue arising from the appeal[emphasis in original in italics; emphasis added in bold italics]
The Appellant did not dispute that he knew he was importing controlled drugs into Singapore without authorisation at the material time. What was disputed at trial and on appeal was the Appellant’s knowledge pertaining to the nature of drugs found in his possession. The crux of the Appellant’s defence was that while he knew he was importing controlled drugs into Singapore, he thought that he was transporting methamphetamine and not diamorphine.
In
Because the parties in
For completeness, we should mention that since this appeal was heard, an important decision of this Court,
Evidence adducedIn our view, while there may be a conceptual distinction between [the first interpretation] (that the knowledge in s 18(2) of the MDA refers to knowledge that the drug is a controlled drug) and [the second interpretation] (that the knowledge in s 18(2) of the MDA refers to knowledge that the drug is a specific controlled drug,
eg , heroin or “ice”),the distinction has no practical significance for the purposes of rebutting the presumption of knowledge of the nature of the controlled drug .To rebut the presumption of knowledge, all the accused has to do is to prove, on a balance of probabilities, that he did not know the nature of the controlled drug referred to in the charge. The material issue in s 18(2) of the MDA isnot the existence of the accused’s knowledge of the controlled drug,but thenon-existence of such knowledge on his part. [emphasis in original in italics; emphasis added in bold italics]
Given our determination that there should be a retrial in this case, we will confine the scope and detail of our discussion of the evidence to that necessary to explain our decision.
The Defence relied on certain events and circumstances which allegedly existed and caused the Appellant to form his mistaken belief that he was carrying methamphetamine. These allegations included:
The Prosecution adduced a statement which was recorded from the Appellant shortly after his arrest (“the contemporaneous statement”), a cautioned statement which was recorded pursuant to s 122(6) of the Criminal Procedure Code (Cap 68, 1985 Rev Ed) (“CPC”) and various long statements which were recorded during the course of subsequent investigations, pursuant to s 121 of the CPC.
The contemporaneous statement contained several questions put to the Appellant and his replies to those questions. Its admissibility was challenged by the Defence. The Appellant’s reply to the charge and warning, as recorded in the cautioned statement, was that he had nothing to say. Its admissibility was unchallenged. The long statements revealed the Appellant’s background, his supplier of controlled drugs for consumption and trafficking (namely Ah Hong), Ah Hong’s associates, the particulars of the Consumption Incidents, the particulars of the First Trafficking Incident and the events which took place on the day of his arrest. The admissibility and veracity of the long statements were also unchallenged. The nature and relevance of all these statements will be further discussed where they are germane.
The Judge’s findings of fact and reasoningThe Judge made the following findings of fact. He disbelieved the Appellant’s account of the recording of the...
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